Mayor of Havre De Grace v. Maxa

Parke, J., delivered the opinion of the Court. As the principal questions here are on a demurrer to the legal sufficiency of the plaintiffs’ case, the testimony will be stated from what has been offered as tending to prove the plaintiffs’ cause of action. The plaintiffs acquired in September, 1936, a property which is on the Chesapeake Bay and lies within the corporate limits of Havre de Grace. The southern boundary of the lot is the waters of the Chesapeake Bay and its northern line borders on a public highway, known as Commerce Street, for two hundred and eighty feet.

On the eastern limits of the property is a lot of Millard E. Tydings which, for a distance of three hundred feet, likewise fronts on the Chesapeake Bay and binds on Commerce Street. A stone wall had been built by Tydings along the width of the water front of his lot. Three ¹⁷² hundred feet east of the plaintiff’s land, and binding on the eastern line of the land of Tydings is Bay View Park, a public resort, which is owned, maintained and controlled by the municipality of Havre de Grace. The park extends, in a continuous line with the northern boundary lines of the lots of the plaintiff and of Tydings, 1164 feet along Commerce Street.

The eastern and the western boundaries of the park are parallel lines which extend, at right angles, south from the side of Commerce Street to the shore of the Chesapeake Bay. The western boundary of the park is about 280 feet in length and the eastern line is about 175 feet. The southern or shore line of the park in its natural condition ran from the southern ends of these two parallel lines in practically a straight line, so that the figure formed was, approximately, a right trapezium. This, generally speaking, was the physical situation when the plantiff acquired his lot, and began the building of his house, at a cost of $35,000, and the municipality determined to improve the park and benefit the public, by extending the shore line outward to the south, and by making in front of the new shore a basin for yachts, with piers for boats.

The plan was carried out in this manner. A breakwater of wooden construction was erected in the Chesapeake Bay parallel with the shore line of the. park. It formed the southern boundary of the projected basin. About 500 feet north of the breakwater, and approximately parallel with it, a line of piles was driven to become the foundation of a concrete retaining wall, which is 500 feet in length and rises above the level of high tide.

At either extremity of the retaining wall a bulkhead, which is constructed of wood piles and sheathing, makes an obtuse angle with the face of the concrete retaining wall, for a distance of 75 feet to 100 feet, and then this exterior line of the bulkhead runs parallel to the prolonged line of the concrete retaining wall for about 175- feet, when it curves to the north and runs until the original shore line is reached. On the west this point is 35 feet from the western boundary line of the park. ¹⁷³ The construction described is called cribbing, and the work when done is simply a wooden retaining wall. The area to the south of the concrete and wooden retaining walls, and north of the breakwater, was shallow water, and the area to the north of the walls was marsh and water, to the original shore line of the park. To get the depth for a basin for yachts and boats between the breakwater and the walls, and to convert the area north of the walls to the old shore line into fast and solid land, the bottom of the bay, south of the walls, was required to be excavated to the necessary depth, and moved so as to cover and fill up the marsh and shallow water between the walls and the old shore line of the park.

Thus the breakwater, the concrete and wooden retaining structures, the excavation on the one side of the structures to make the basin, and the fill on the other to make solid land, were necessary, dependent, parts of a contemplated, unitary, whole. The object of the municipality was to add to the beauty and increase the utility of the park by increasing its area, stabilizing its shore line, and providing a contiguous basin for yachts, with piers for boats. The erection of a retaining wall was the key structure of this plan. It served at once to bound and confine the north side of the basin, and to hold fast the water front and the fill to be made on its land side.

The required depth for the basin and the material for the two acres of land to be made for the park were procured, as was designed, by pumping away the earth at the bottom of the bay in front of the wall, and forcing the fluid earth over the wall upon the marsh and shallow water between the wall and natural shore line of the park. Thus the essential utility of the wall was to keep the removed material in place so that it would become fast ground, and would not get back into the basin, nor escape so as wrongfully to invade and affect the property rights of others. City of Baltimore v. Merryman, 86 Md. 584 , 39 A. 98 . The cost of building the concrete retaining wall was §14,500, of which §13,000 was a part of the proceeds of ¹⁷⁴ the sale of the municipal bonds.

The remaining §1500 was drawn from the general funds of the municipality. The projecting wooden bulkheads and cribbing at both the eastern and western ends of the concrete retaining wall, which' have been described as constituting the wooden retaining walls, were constructed after the erection of the concrete retaining wall. The base of the fill was about 1100 feet and its length, when measured along the prolonged line of the concrete wall, was about 1000 feet, or 500 feet more than the length of the concrete retaining wall. The minimum width of the fill back of the concrete wall was 100 feet.

At the eastern end of the fill it was within 25 feet of the eastern boundary of the park and 225 feet in width, while at the western end of the fill it was 35 feet from the western boundary of the park and 125 feet in width. These measurements indicate the large frontage of the fill, which was wholly unprotected by the concrete retaining wall from the washing of surface water and the erosion of the tidal waters of the bay. Under these physical conditions, the earth, as it was excavated from the bottom of the basin, could not be held fast within the area contemplated. Notwithstanding the obvious peril and the necessity to construct the adequate devices or works to prevent the spread of the dredged material beyond the confines of the park, adequate precautionary measures were neglected, and dredging operations began on the yacht basin in January, 1937, and the material dredged was placed back of the concrete retaining wall, with the natural and to be anticipated consequence that the material escaped to the west and moved some 600 or 700 feet westerly along the shore in front of the properties of Tydings and of the plaintiff.

One of the engineers on the work in the employ of the municipality observed this condition, and informed his superior, J. Spence Howard, who was also employed on this work by the municipality, of what was happening, and that it would likely cause an action for damages against the municipality, but nothing was done at the time to prevent the further ¹⁷⁵ movement of the material. Before it was stopped by the erection in May and June, 1937, of the bulkhead or wooden retaining wall, with an interior reinforcement of earthen dikes, the material at large had made a fill which extended some 700 or 800 feet to the west from the western limits of the yacht basin, with an average depth of two feet. It is estimated that about 6000 or 7000 cubic yards of fill were thus deposited in front of the plaintiff’s property. The effect of the deposit is that at mean low tide the earth is seven or eight inches above the water while formerly, at the same state of the tide, there was a depth of a foot and one-half to two feet of water.

Before the injuries complained of, the plaintiff was able to reach the deep water of the Chesapeake Bay from his home in his house boat with a draft of twenty-six inches. The deposit has completely destroyed this use. There were two channels which he used in going to and from his shore front. One was some distance out, and the deeper one was close in shore.

The latter is filled up and rendered useless. In ducking, the plaintiff could get to the flats for the shooting in his boat, but now this is prevented by the accumulated mud and marsh grass and cat-o-nine-tails. These and other injuries affect the property of the plaintiff in a manner peculiar to the property in question, and so inflicted upon its owner injuries which were not in common with those sustained by the public generally. For these wrongs an action on the case would lie.

Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197 , 4 A. 2nd 757. If the jury believed these facts, the plaintiff was entitled to recover. In the first place, the charter of the municipality made it subject to suit, and enabled it to discharge its pecuniary obligations by the grant of the power to levy taxes for its municipal purposes. The public improvements described were within the authorized public undertakings of the municipality.

Code of Public Local Laws (Flack), vol. 2, art. 13, sec. 302. Furthermore, express provisions were made for the improve ¹⁷⁶ ments undertaken, and the municipality acted pursuant to the grant. Infra. The Acts of 1933 (Special Session), ch. 30, known as “The Public Works Act,” as amended by chapter 393 of the Acts of 1935, empowered the municipality of Havre de Grace to construct, and to extend, replace, operate, develop, better or improve, any public works project within the limits of the municipality, and to receive aid therefor in the form of grant, loan or other financial assistance from any federal agency, and to make and perform all such contracts on such terms, provisions and conditions as may be necessary, proper, or advisable for the purpose of obtaining or securing grants, loans, or other financial assistance from any such federal agency.

Acts of 1933, ch. 30, sec. 1(a), (e), sec. 2(a), (b), (h), (j), sec. 4, sec. 7. For the purpose of making improvements to the municipal reservoir, sewerage system, sidewalks, pavement^ and park, application for a loan was made to federal agencies. These objects are all within the statutory definition of “public works project,” supra. The plan contemplated the issue by the municipality of S100,000 in bonds in order to obtain the other two-thirds of the expense of the entire project.

The resolutions of the municipality for the calling of a special election to approve or disapprove the issue of the bonds stated the proceeds, together with funds to be obtained through federal agencies, were to be used “for the making improvements to the City Park System.” The title of Ordinance No. 404, which was enacted on October 21st, 1935, after the referendum had resulted in the approval of the proposed issue of bonds, states the object, inter alia, is “for making improvements to the City Park.” The ordinance begins with an introductory recital of various precedent steps in relation to the undertakings. It declares that a resolution was adopted on July 15th, 1935, to file an application “for a loan and grant to aid in financing * * * the construction of a yacht basin, and dredging and the improvement of the City Park.” It states the ¹⁷⁷ acceptance, on October 21st, 1935, of the offer of the Federal Government “to aid by way of loan and grant in financing channel and yacht basin construction and extension of the City Park with dredging.” After the preamble, the record is that by section four, paragraph two of this ordinance, the proceeds of the bond issue was apportioned, so that: “2. For the construction of a bulkhead at the City Park and for filling back of said bulkhead by dredging there shall be expended by the Mayor and City Council of Havre de Grace from the proceeds of the sale of bonds hereinabove authorized, the sum of Thirteen Thousand Dollars ($13,000.00) and no more; the total cost of said public works project being approximately Eighteen Thou-said Dollars ($18,000.00) and the difference between the amount hereby authorized to be expended by the Mayor and City Council of Havre de Grace on said project and the total cost thereof having been granted to the Mayor and City Council of Havre de Grace by the United States of America through the agency of the Federal Emergency Administration of Public Works. “As heretofore recited in this ordinance an application was made by The Mayor and City Council of Havre de Grace to the United States of America for a grant of funds, which, together with the sum of Thirteen Thousand Dollars ($13,000.00) to be expended by The Mayor and City Council of Havre de Grace would be sufficient for the construction of said improvement to the City Park and also for the construction of a yacht basin adjacent thereto, the total cost of such project to be Thirty-seven Thousand Dollars ($37,000.00) and the grant therefor from the United States of America to be Twenty-four Thousand Dollars ($24,000.00). Said application for funds has not yet been granted.

Wherefore, in the event said funds are granted then in that event The Mayor and City Council of Havre de Grace be and it is hereby authorized to proceed with the construction of said total project as outlined in said application. In the event said funds are not granted then ¹⁷⁸ The Mayor and City Council of Havre de Grace is authorized to proceed only with the construction of the bulkhead at the City Park and the filling behind the same, using for that purpose the sum of Thirteen Thousand Dollars ($13,000.00) hereinabove allocated thereto, together with the sum of Five Thousand Dollars ($5,000.00) of the total grant made by the Federal Emergency Administration of Public Works for the construction of said entire project; provided, however, that in no event shall any costs incurred in connection with the construction of so much of the yacht basin as is located outside of the corporate limits of The Mayor and City Council of Havre de Grace and in the Chesapeake Bay be paid from the proceeds of the sale of the bonds hereinabove authorized, but all of such costs shall be paid from such other moneys as may be received by The Mayor and City Council of Havre de Grace from the United States of America.” The statutes and ordinance establish that the contemplated improvements' were a municipal project in the course of which agencies of the Federal Government furnished, in large part, money and labor. There is no question that the municipality built the concrete retaining wall at a cost of $14,500; and that $13,000 of this was a part of the proceeds of the issue of bonds, mentioned. There is, also, no controversy that a civil engineer, J. Spence Howard, was. employed in 1936 to represent the municipality in the entire project, and that, in this capacity, he supervised the construction of the concrete retaining wall, and the extension of a wood bulkhead, at either end of the concrete wall, for about 100 feet towards the south and forming an obtuse angle with the face of the concrete wall.

In his testimony, the engineer asserted that this was the end of the work under the direct control of the municipality. As thus built the municipality delegated to the federal agency, known as the Works Progress Administration, the work of dredging the material out of the bottom of the proposed yacht basin and pumping it over the re- ¹⁷⁹ taming wall as thus completed, and discharging the dredged material from the pipe lines into the shallow water between the line of the wall and the natural shore line of the